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H-1B Visa Immigration Attorney

The most popular form of a work visa is an H-1B. Unlike other visas, an H-1B visa must be initiated by the employer, not the employee. The employer can only accept a foreign national employee once it has an approved Labor Certification Condition application from the Department of Labor, among other requirements.

What is a Labor Certification Condition application?

A Labor Certification Condition Application is completed online by the employer's immigration attorney. The employer certifies, among other things, that:

the "H-1B nonimmigrant will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupation in the area of employment, whichever is higher."

In other words, the employer must certify that the H-1B employee will be paid the "prevailing wage" for individuals working within the same profession.

How does the employer determine the "prevailing wage"?

The prevailing wage can be determined in a number of ways, but the most common procedure is to submit a prevailing wage request to the Department of Labor. The prevailing wage request will outline the position, its requirements, duties and responsibilities. The Department of Labor then responds with what it believes to be the "prevailing wage" for someone within that profession. The employer is obligated to pay the prevailing wage.

Who qualifies for an H-1B Visa?

In order for an employee to be eligible for an H-1B, the job and the employee's profession must be a specialty occupation. This has been defined as including, but not limited to, architects, engineers, lawyers, physicians, surgeons, and teachers, among others. Generally, an H-1B is reserved for individuals with specialty knowledge, as opposed to mere skill, and a bachelor's degree or its equivalent is required.

Second, there must be an employer-employee relationship. An independent contractor, or someone merely working on a commission basis is not sufficient for an H-1B visa.

Simply put, an attorney will assist the employer in showing that the immigrant employee has the credentials and skills for the occupation and there is a temporary job available in a specialty occupation matching the immigrant employee's educational background.

Who pays for the H-1B Visa?

Generally, the employer, not the employee, must pay for most of the costs associated with an H-1B visa. Working with an experienced employment immigration attorney can guide the employer to reduce risks associated with these expenditures.

What is the "cap" for H-1B employees?

H-1Bs are capped at 65,000 visas per year. There are an additional 20,000 visas available for those with a master's degree. However, there are many employees and employers that may be cap-exempt. For example, hiring an individual who is currently on an H-1B visa is cap-exempt.

How long will an H-1B visa be issued for?

An H-1B visa may be approved for up to 3 years, but may not exceed the period of the validity of the Labor Certification Condition. With exceptions, an H-1B visa is valid for no more than six years.

Conclusion

Applying for an H-1B visa for an employee is a complex process, requiring many steps, procedures and governmental entities.

If you are seeking to hire a foreign national, you should contact an experienced employment immigration attorney to assist your company with this task.

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